Brooke Astor's son: I'm too sick to be imprisoned

AP News
Posted: Dec 05, 2009 4:00 AM

Brooke Astor's 85-year-old son has turned to friends in high places _ including Whoopi Goldberg and Al Roker _ to help him make the case that he is too sick and doesn't deserve to go to prison for plundering his philanthropist mother's fortune.

"I am asking you respectfully to not put this 85 year old gentleman in jail. I cannot believe he will even be able to survive there," Goldberg wrote in one of about 70 letters that were among court papers filed Friday by Anthony Marshall's lawyers in a bid to persuade a judge to dismiss the part of his conviction that requires time behind bars.

"He has suffered enough through this humiliation and ugliness," the comedian added.

Defense lawyers say any prison time could effectively be a death sentence for the frail Marshall _ an unwarranted penalty for a decorated World War II veteran and former U.S. ambassador convicted of a nonviolent crime, they say.

Marshall is seeking a dismissal of the top charge in his Oct. 8 conviction. The first-degree grand larceny count carries a mandatory prison term of at least a year and as long as a quarter-century. He is due to be sentenced Dec. 21.

Marshall's hopes hinge on a state law that lets judges toss charges "in furtherance of justice," based on factors including a defendant's condition and character and the circumstances of the offense. They can do so even after a conviction and without other legal reasons for a dismissal, such as insufficient evidence or procedural problems.

But legal experts say courts use the power sparingly, and Marshall will have to overcome issues including the gravity of his crime and the appearance of giving a break to a rich, blue blood defendant.

The Manhattan District Attorney's office declined to comment.

A jury found Marshall guilty of taking advantage of Astor's mental decline to loot her nearly $200 million fortune, through methods ranging from engineering changes to her will to taking artwork off her walls.

Estate lawyer Francis X. Morrissey Jr., 66, was convicted of scheming to defraud and other charges for helping Marshall. Morrissey's lawyer has said he plans an appeal.

The socialite was 105 and suffering from Alzheimer's disease when she died in 2007. Marshall is her only child.

Prosecutors portrayed him as a money-hungry heir who couldn't wait for his mother to die. Defense lawyers said Marshall had the legal power to give himself gifts with Astor's money, and she was lucid when she changed her will to benefit him.

To help make Marshall's case for dismissing the top charge, Goldberg wrote that he and his wife, Charlene, were the only neighbors who were welcoming when she moved into their building on Manhattan's Upper East Side.

Roker, a fellow parishioner at Marshall's church, depicted him as a loving son and unselfish patriot. The NBC "Today Show" weatherman urged the court "to not add 'prisoner' to Anthony Marshall's otherwise unblemished resume."

Fellow Marines described Marshall's humility about his distinguished service record; he was wounded in Iwo Jima, earning a Purple Heart. His cardiologist said that prison "would result in his premature death" by aggravating Marshall's heart and other problems.

Marshall never fully recovered from quadruple-bypass surgery in 2008, has been hospitalized repeatedly with a gastrointestinal disease and often needs help walking, one of his doctors wrote. His lawyers said he suffered a mini-stroke during his trial. At another point, he collapsed in a courthouse men's room and was taken to a hospital.

Marshall's medications, dietary needs and trouble walking would be difficult to manage in prison, and it would subject him to dangerous "physical and psychological stress," defense lawyers John R. Cuti and Kenneth E. Warner wrote.

"By exhibiting compassion for an elderly, ill man, and showing respect for his many years of valiant service for his country, the court would remind the public that our justice system is capable of true majesty," they said.

They also noted that some jurors told reporters after the trial that the top charge _ which concerned a more than $1 million raise Marshall awarded himself for managing Astor's finances _ was a sticking point during their 11 full days of deliberations.

Courts considering a dismissal "in furtherance of justice" must weigh several issues _ including the seriousness of the offense and the effect of a dismissal on public confidence in the criminal justice system.

Those could be hard for Marshall to surmount, since he was convicted of a high-level felony in a case brought in part to show that the privileged aren't insulated from prosecution, said Peter Tilem, a White Plains, N.Y.-based defense lawyer.

Courts "want to exercise (that authority) very sparsely when you're talking about the rich and famous because it has the effect" of raising questions about special treatment, he said.